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Joy Anthony Payapply vs Eureka Joy D/O Alfred Bapista on 10 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO.290 OF 2017
IN
FAMILY COURT APPEAL NO.197 OF 2015

Joy Anthony Payaapply .. Applicant

IN THE MATTER BETWEEN

Eureka D/o Alfred Baptista .. Appellant

V/s.

Joy Anthony Payaapply .. Respondent

Mr.Partha S. Sarkar for the applicant

Mr.G.S.Hegade i/b Ms.Pinky Bhansali for the appellant in Family
Court Appeal No.197 of 2015

CORAM: K.K. TATED
N. J. JAMADAR, JJ.

DATED : DECEMBER 10, 2018

P.C. :

1 Heard.

2 By this Civil Application, Applicant-husband is seeking to

vacate the interim relief granted by this court by order dated
14.10.2015 in Family Court Appeal No.197 of 2015 staying the
order passed by Family Court, Mumbai at Bandra dated 1.7.2015

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in Petition No.A-696 of 2012.

3 The second prayer in the present Civil Application is to
direct the appellant wife to refund the amount of Rs.9 lacs which
was paid by the Applicant husband by way of maintenance
charges.

4 The third prayer made by the Applicant is, till the hearing
and final disposal of Family Court Appeal No.197 of 2015,
Applicant be spared to pay further maintenance charges. Prayer
clause a, b, f, g and i of the present Civil Application reads thus:

“(a) To admit the instant application.

(b) To vacate the stay of the family-court’s order
dt/- 1st July, 2015, granted vide this Hon’ble Court’s
order dt/- 14th Oct, 2015 vide Exh – J.

(f) To direct the petitioner to refund the applicant
amount of around 9 lacs, which thru
misrepresentation / false submissions before the
Court’s of law had gorged out from the applicant.

(g) As a measure of equity, till the disposal of the
captioned appeal, the instant applicant be spared to
pay further maintenance.”

Other prayers are deleted by the Applicant as per order
dated 5.4.2018.

5 In the present proceedings, initially the Applicant husband
filed Petition No.A-696 of 2012 before the Family Court Mumbai

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at Bandra for dissolution of marriage on the ground of cruelty
under section 10(1)(i)(x) of the Divorce Act, 1869. After hearing
both the sides, Family Court annulled the marriage between the
Applicant and appellant by order dated 01.07.2015. Operative
part of the said order reads thus:

” ORDER

1. The Petition is allowed.

2. The marriage between petitioner and
respondent dated 1.1.2010 took place at St.Xavier
Church, Vile Parle, Mumbai is herby annulled with
effect from the date of decree.

3. Parties to bear their own costs.

4. Decree be drawn up accordingly.”

6 During the pendency of the Family Court Appeal, Applicant
husband paid some maintenance charges to the wife. Thereafter,
this court by order dated 23.09.2016 (Coram: V.M.Kanade
Smt.Swapna S. Joshi JJ.) in Civil Application No.336 of 2015
directed applicant to pay maintenance charges of Rs.15,000/- per
month to the wife and Rs.15,000/- per month to his daughter.

7 The learned counsel for the Applicant husband submits that
order passed by this court on 14.10.2015 was ex-parte order.
Hence, same is required to be vacated. It is to be noted that it is
specifically recorded in the order that at the request of counsel
for the Respondent-husband, matter was adjourned to

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19.11.2015. Order dated 14.10.2015 passed by this court reads
thus:

“P.C.:

1. At the request made by the learned counsel for
the Respondent-Husband, stand over to 19.11.2015.

2. In the meantime, the impugned order is stayed.
The Respondent-Husband shall clear the arrears of
maintenance, if any, till the date of the order. Arrears
to be paid before the next date.”

8 Bare reading of the order dated 14.10.2015 shows that
same was passed after hearing both the sides. Therefore, there is
no question of staying and or vacating the said order. Hence,
prayer clause (b) made by the Applicant in the present Civil
Application stands rejected.

9 Another prayer made by the Applicant husband directing
appellant wife to refund sum of Rs.9 lacs paid by him towards
maintenance charges. Bare reading of prayer clause (f) shows
that the said sum of Rs.9 lacs was paid by the Applicant. It is
very difficult to find out from the bare reading of prayer clause (f)
by which order the Applicant paid sum of Rs.9 lacs to the
appellant and for what purpose. During the course of argument,
the learned counsel for the Applicant submitted that this court
by order dated 23.09.2016 in Civil Application No.336 of 2015
directed Applicant husband to pay the enhanced maintenance
charges.

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10 The learned counsel for the Applicant submits that

appellant wife made false statement before the Trial Court for
obtaining the order of maintenance charges. He submits that
before the Trial Court, appellant wife specifically made a
statement that she is not working and or earning anything. In
support of this contention, the learned counsel for the Applicant
relies on paragraph 33 of the Trial Court’s order which reads
thus:

“33. It appears from the record that P.W. 3
Mrs.Philomena Nunes who is mediator of the
marriage between petitioner and respondent has
categorically stated that at the time of initial
settlement talks of the marriage, the mother of
respondent has stated that the respondent has
appeared for 12th Std. Exam in I.B.Board and she is
taking tutions, earning an amount of Rs.30,000/- to
40,000/- p.m. This fact was categorically mentioned
by the petitioner in his evidence as well as P.W. 2 i.e.
sister of petitioner has categorically narrated said
fact in her evidence. It appears from the cross
examination of above three witness nothing has
brought on record to disprove the version of
petitioner and hi witnesses.”

11 The learned counsel for the Applicant also relies on the
ground no.P and U of the appeal memo which reads thus:

“(P) The Ld. Trial court ought to have, besides
granting proper maintenance to appellant and both
her daughters, must have made provisions for the
residence, education, marriage and proper
upbringing of the daughter.

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(U) The Ld. Trial Court committed the substantial
error in granting the Decree of Divorce and also not
granting the required amount of maintenance to the
appellant and her daughters.”

12 The learned counsel for the Applicant also relies on the
photograph which is on page 16 in Civil Application No.180 of
2018 to show that appellant wife was working. He submits that
though the appellant wife was earning more than Rs.30,000/- to
Rs.40,000/- per month, she made false statement before the
court of law and obtained an order of maintenance. Hence, the
appellant wife be directed to refund sum of Rs.9 lacs paid by him
towards the maintenance charges.

13 The learned counsel for the Applicant submits that in the
present proceedings, appellant wife made false statement before
the Trial Court as well as before this court for obtaining order of
maintenance. Hence, appellant wife be directed to refund sum of
Rs.9 lacs which was paid to her towards maintenance charges. In
support of these submissions, the learned counsel for the
Applicant relied on following authorities:

1. Dalip Singh vs. State of Uttar Pradesh and Others,
(2010) 2 SCC 114, paragraph 2

2. Mrs.Gurpreet Kaur Alagh vs. Mr.Gurpreet Singh
Alagh, 2017 SCC Online Bom 9857, paragraph 4 and 5

3. Subrata Roy Sahara vs. Union of India and Others,
(2014) 8 SCC 470, paragraph 191 and 194

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4. Dnyandeo Sabaji Naik and Another vs. Pradnya
Prakash Khadekar and Others, (2017) 5 SCC 496,
paragraph 14

5. N. Natarajan vs. B.K. Subha Rao (2003) 2 SCC 76,
paragraph 8

6. J.I.K Industries Co. Ltd. vs. Shri Maruti Nashik Mene
Ors., 2017 SCC Online Bom 3477, paragraph 14

7. Fareed Ahmed Qureshi vs. The State of Maharashtra
and Anr., 2018 SCC Online Bom 960, paragraph 8

8. Union of India v. Mr.Harish V. Milani 2018 SCC Online
Bom 2080, paragraph 4 and 6

9. E. S. Reddi vs. Chief Secretary, Government of A.P.

and another, (1987) 3 SCC 258, paragraph 11

10. Hindustan Organic Chemicals Ltd. vs. ICI India Ltd.

(2017) 5 BCR 119, paragraph 12

11. Chandra Shashi vs. Anil Kumar Verma (1995) 1 SCC
421, paragraph 2

12. Sejalben Tejasbhai Chovatiya vs. State of Gujarat,
2016 SCC Online Guj 6333, paragraph 19

14 On the basis of these submissions, the learned counsel for
the Applicant submits that if the order is obtained fradulently,
that order is required to be set aside. He submits that in the case
in hand, appellant wife obtained order of maintenance charges by
suppressing the fact that she was working and earning nearabout
Rs.30,000/- to Rs.40,000/- per month and therefore, whatever
amount is paid by the Applicant to the applicant wife, is required
to be refunded.

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15 Another prayer i.e. prayer clause (g) is made by the
applicant that, Applicant may be spared to pay further

maintenance in view of above mentioned facts of the present
case.

16 On the other hand, the learned counsel for the Respondent
appellant wife vehemently opposed the present Civil Application.
He submits that wife also preferred Civil Application No.304 of
2018 for an order against Applicant husband to clear the entire
arrears of maintenance being Rs.91,500/- and for other reliefs.
He submits that those reliefs reads thus:

"(a) this honourable court be pleased to order and
direct the respondent to pay the entire arrears of
maintenance being Rs.91,500/- being the differential
amount of maintenance payable by the respondent
till March 2018 and also pay the arrears calculated at
the rate of Rs.30000/- per month from the month of
April 2018 of upto August 2018 and continue to pay
the same, even thereafter every month, as directed
by this honourable court in the orders dated 31st
March 2016 and 23rd September 2016, 7th March 2017
and 2nd May 2017;

(b) this honourable court be pleased to order and
direct that the said amount of maintenance be paid to
the applicant wife, on or before 7th of each month and
the respondent be further directed to file an
undertaking to that effect in this Hon'ble court as
earlier directed by this Hon'ble in its order dated 2nd
May 2017;

(c) this honourable court be pleased to take serious
cognizance of the defaults committed by the
respondent in paying the enhanced maintenance as

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ordered and directed by this honourable court vide
orders dated 31st March 2016, 23rd September 2016
and 7th March 2017, also the conduct of the
respondent to cause proceedings filed through
relations making wild and reckless allegations and as
such hold that the respondent is guilty of contempt of
this honourable court and is liable to be prosecuted
and be prosecuted and punished in accordance with
law for wilful disobedience of the orders passed by
this honourable court as well as for interfering with
this honourable court in the administration of justice;

(d) That the further proceedings of civil application
no.290 of 2017 and civil application no.180 of 2018,
writ petition no.67000 of 2018 and civil application
no. 1857 of 2018 and any other proceedings as filed
by the respondent and his relatives, be stayed till the
entire amount of arrears are paid to the applicant
herein and undertaking, as directed by this Hon'ble
court in its order dated 2 nd May 2017, is filed by the
respondent herein;

(e) Ad-interim relief in terms of prayer Clause (a)
to (d) of the civil application;

(f) Such further and other reliefs as the nature and
circumstances of the case may require;

(g) Cost of the civil application be provided for."

17 The learned counsel for the Appellant-wife submits that as
Applicant is in arrears of maintenance charges payable to the
wife, court should not hear any Application filed by Applicant
husband in the present proceedings. He further submits that
Trial Court after hearing both the sides passed interim order
directing Applicant husband to pay maintenance charges. Not
only that, this court by order dated 23.09.2016 specifically
recorded in paragraph 2 that advocate appearing on behalf of

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Applicant husband failed to file his Affidavit-in-Reply, inspite of
that, time was granted. He submits that paragraph 2 of the said
order reads thus;

"2. Though time was taken by the advocate for the
Respondent-husband in March, 2016 for filing an
affidavit in reply, he has not filed any reply till today.
It is obvious that the Respondent-Husband is trying
to protract the proceedings. Today in the morning as
well as in the afternoon session, the advocate for the
Respondent-husband did not appear before us. The
Trial Court has granted maintenance of Rs.10,000/-
p.m. to the Appellant-wife and Rs.5,000/- p.m. to
their daughter."

18 The learned counsel for the Appellant submits that this
court passed order dated 23.09.2016 in Civil Application No.336
of 2015 on its own merits. Therefore, there is no question of
directing appellant wife to refund the amount paid by the
Applicant husband towards the maintenance charges. Hence,
Civil Application is required to be dismissed with costs.

19       We have heard both the sides.

20 It is to be noted that in the present proceedings, bare

reading of prayers in the present Civil Application shows that
Applicant is seeking to vacate the order dated 14.10.2015 passed
by this court by which the impugned order passed by Family
Court in Petition No.A-696 of 2012 was stayed. In any case,
Family Court Appeal is already admitted. Therefore, there is no
question of vacating the said order. Hence, prayer clause (b) of
the present Civil Application is rejected.

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21 The second prayer made by the Applicant is about refund of

amount of Rs.9 lacs. It is to be noted that in the present
proceedings, during the pendency of Divorce Petition No.A-696 of
2012 before Family Court, Family Court directed Applicant
husband to pay maintenance charges. Thereafter, this court by
order dated 23.09.2016 in Civil Application No.336 of 2015
enhanced the amount of maintenance charges. Whether the
appellant wife has obtained this order by committing fraud and
suppressing the fact that she was working and earning
Rs.30,000/- to Rs.40,000/- per month, is required to be decided
at the time of final hearing of the Family Court Appeal.
Therefore, the authorities relied by the Applicant as stated
hereinabove are not applicable in the facts and circumstances of
the present case and this issue is required to be decided at the
time of final hearing of Family Court Appeal. Hence, prayer
clause (f) made by the Applicant in the present Family Court
Appeal stands rejected.

22 Another prayer made by the Applicant is about payment of
maintenance charges. It is the case of the Applicant that in view
of the fraud committed by the appellant wife, Applicant husband
be spared to pay further maintenance. It is to be noted that order
passed by this court 23.09.2016 in Civil Application No.336 of
2015 is intact till today. Neither same is challenged by the
Applicant before the higher court nor filed any Review Petition.
Therefore, there is no question of entertaining the Applicant's
prayer clause (g) of the present Civil Application.

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23 In view of above mentioned facts, we do not find any

substance in the present Civil Application.

24 Civil Application stands rejected.

          (N. J. JAMADAR, J)                     (K.K. TATED, J.)

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